Appeal No.	EAT/1176/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 January 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR D J HODGKINS CB
MS B SWITZER

TATE & LYLE SUGARS	APPELLANTS

MR M HATTER	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR ADRIAN LYNCH
(of Counsel)
Messrs Howard & Howard 
34 Lyndale Avenue
Childs Hill
London
NW2 2QA

	JUDGE PETER CLARK:     This is an appeal by the employer against a decision of the Stratford Industrial Tribunal sitting on 3 July 1997, upholding the employee, Mr Hatter’s, complaint of unfair dismissal.  The Tribunal went on to find that Mr Hatter had contributed to his own dismissal to the extent of 100% and made a nil award.  Extended Reasons for that decision are dated 6 August 1997.  

	This was a fighting case.  The Industrial Tribunal found, on the evidence, that a temporary worker, Mr Amoge, who worked alongside Mr Hatter, proved to be a demanding and abusive co-worker.  Supervision knew that, and had taken no disciplinary action against Mr Amoge.  

	Mr Hatter had been previously bullied by Mr Amoge.  On 31 January 1996 the material incident took place.  Those present were Mr Hatter, Mr Amoge and two other employees, Mr O’Neal and Mr Turpin.  In essence, Mr Amoge swore at Mr Hatter and then moved towards him, pushing him backwards in a threatening manner.  Mr Hatter retreated, waving a broom which he was holding above Mr Amoge’s head.  Mr Amoge grabbed the broom and the two men struggled for possession of it.  During the struggle Mr Amoge was struck on the mouth by Mr Hatter’s hand.  Mr Hatter later said that was an accident.  Thereafter Mr Hatter ran 30 feet and picked up a metal scraper which was an implement capable of causing serious bodily harm.  He then returned to the scene with the scraper to learn that Mr Amoge had left to report the matter to management.

	The Appellants carried out an investigation, although neither Mr O’Neal nor Mr Turpin were asked to make statements as to what they saw.  The investigation was conducted by Mr Peters, the Site General Manager, whereafter a disciplinary hearing was conducted by Mr Weir, the Employee Relations Manager on 5 February 1996.  Mr Peters presented the management case.  At the conclusion of the hearing Mr Peters retired with the panel, which included Mr Weir and two others.  Mr Weir decided to summarily dismiss Mr Hatter.  

	Later that day Mr Amoge was also seen and dismissed.

	Mr Hatter appealed to the Personnel Director, Mr Anderton.  He had previously heard Mr Amoge’s version of events when he had appealed, and took those into account at Mr Hatter’s appeal hearing on 23 February.  Mr Anderton concluded that Mr Hatter’s version of events was “improbable”, to some extent influenced by Mr Amoge’s version, which had not been put to Mr Hatter during his appeal.

	The Tribunal accepted that the reason for Mr Hatter’s dismissal related to his gross misconduct in engaging in a violent struggle with a fellow employee in the work place.  However, they found that the disciplinary process was flawed in the following respects:

(1)  Mr Peters retired with the panel before Mr Weir announced his decision to dismiss.

(2)  The Appellants failed to carry out a proper investigation, in that no proper attempt was made to explore the evidence of Messrs O’Neal and Turpin.

(3)  Mr Weir reached a decision in Mr Hatter’s case before hearing the case of Mr Amoge.

(4)  The Anderton appeal did not cure those defects in the process since it was treated as an appeal against penalty only; it did not explore Mr Turpin’s evidence, and a conclusion was reached in part on the basis of Mr Amoge’s evidence to Mr Anderton, which was not put to Mr Hatter at his appeal.

	The Tribunal found as a fact that Mr Hatter did threaten Mr Amoge with the broom and then picked up the metal scraper and returned to the scene.  In these circumstances, bearing in mind the seriousness with which fighting at work is generally viewed, the Tribunal found 100% contribution on Mr Hatter’s part and made no award of compensation.

	Against the finding of unfair dismissal there is now an appeal.

	This is a preliminary hearing held to determine whether or not the appeal raises any arguable point or points of law to go to a full hearing.  The points made in the appeal have been advanced with characteristic thoroughness by Mr Adrian Lynch.  His first point is that the Tribunal, despite its correct self-direction in paragraph 5 of its reasons that the Tribunal must not substitute and has not substituted its own view of the matter for that of the employer, nevertheless went ahead and did precisely what it said it ought not to do.  In particular, he relies upon the finding in paragraph 6(a) of the Tribunal’ reasons that the fact that Mr Hatter was on a final warning for lateness at the time of the material incident, was of little or no significance in this case.  

	Mr Lynch relies heavily upon a decision of this Tribunal in Auguste Noel Ltd v Curtis [1990] IRLR 326, a case cited to the Industrial Tribunal below for the proposition that it is an error of law for an Industrial Tribunal to proceed on the basis that previous disciplinary action for different offences is irrelevant to management’s consideration when after the final incident has taken place.  We think that Auguste Noel should be seen in its context.  In that case the Industrial Tribunal found that the final act of misconduct relied on by the employer, being different in nature to earlier disciplinary offences for which written warnings had been given, meant that the earlier disciplinary proceedings were irrelevant when it came to the employer considering the appropriate penalty in that case.  The employer’s appeal was allowed by this Tribunal, Wood J presiding, and it was made clear at paragraph 10 of the judgment in that case that it can very rarely be said, if ever, that warnings are irrelevant to the consideration of the employer who is considering dismissal.  The mere fact that conduct was a different kind on those occasions when warnings were given does not seem to us to render them irrelevant.  

	We do not depart from the statement of principle in the case of Auguste Noel but we repeat that it must be put in context.  Plainly, if there had been an issue in this case as to the appropriateness of the penalty of dismissal, the question of the earlier warnings would have been of significance.  However, that was never an issue.  A dismissal is generally within the range of reasonable responses in a fighting case where there has been no previous disciplinary record.  We think that the Auguste Noel case should be limited to that principle.  It should not be extended in the way in which Mr Lynch seeks to do for the purpose of his argument in this case.

	It is further submitted that the Industrial Tribunal in this case has made its own findings of fact and in so doing has substituted its view for that of the employer.  For example, in paragraph 6(a) the Tribunal state:

“The Tribunal finds that Mr Amoge had over a long period been the aggressor and had behaved in a threatening insulting and intimidatory fashion towards Mr Hatter and that the company’s failure to act had created an atmosphere of fear in the workplace.”

	We think that the Industrial Tribunal were merely recording that finding as part of the background.  The basis upon which it found the dismissal to be unfair are the grounds which we have set out numbered (1) - (4) earlier in this judgment.

	At the end of the day, we are not satisfied that Mr Lynch has raised an arguable point that this Tribunal substituted its own view for that of the employer.  His second point is that the Tribunal’s finding in paragraph 6(a) that the disciplinary process was unsatisfactorily conducted, noting in particular the role of Mr Peters when the disciplinary decision was taken and the Respondent’s failure to explore the evidence of Mr Turpin and Mr O’Neal, provides insufficient reasoning to explain why they found that the disciplinary process was so unsatisfactory as to amount to an unfair dismissal.  We do not have the same difficulty.  

	It is quite clear to us that the Tribunal, finding that Mr Peters retired with Mr Weir’s panel at the end of the disciplinary hearing, was one of the factors which led to the finding of unfairness.  It gives the appearance of unfairness if the management representative who presents the case at the disciplinary hearing then retires with the person who ultimately decides the outcome of the case.  

	Again, Mr Lynch has relied heavily on a decision of this Tribunal in Rowe v Radio Rentals Ltd [1982] IRLR 177, a case in which an Industrial Tribunal found that there was no breach of the rules of natural justice such as to render a dismissal unfair, when the person hearing an internal appeal had been informed of the decision to dismiss before it took place and the person who took the disciplinary decision was also present throughout the appeal hearing.  We view that case in the context of a number of cases on the question of the principles of natural justice applicable to the question of reasonableness under what is now section 98(4) of the Employment Rights Act 1996.

	It will be a question very often for the judgment of the Industrial Tribunal to look at the matter in the round and to decide whether or not the procedure employed was materially defective such as to render the dismissal unfair; that finding was part of the picture which the Industrial Tribunal gained from this case leading them to the finding of unfairness.  Similarly, they took the view that a reasonable employer, in carrying out an adequate investigation in this case, would have investigated further the question of what Mr Turpin and Mr O’Neal could contribute to the process.  Again, that is matter of judgment in our view for the Industrial Tribunal.  Similarly, whether a reasonable employer would have heard both the cases of Mr Amoge and Mr Hatter, before reaching a disciplinary decision in either of those cases.

	At the end of the day and notwithstanding the sustained argument by Mr Lynch, we have reached the conclusion that this Tribunal reached a permissible conclusion based on its findings; we see no arguable point of law which ought to go to a full hearing and accordingly the appeal will be dismissed.